Nonprofit involvement in political activity is a gray area

Organizers of a recall petition of La Plata County Commissioner Gwen Lachelt collected signatures Thursday in the parking lot of the Veterans of Foreign Wars Post 4031, 1550 Main Ave. Some opponents of the recall effort have asked if granting permission to recall supporters to collect signatures endangers the tax-exempt status of Post 4031. The answer is complicated.

Jerry McBride/Durango Herald

Lachelt

Parker

A petition drive to recall La Plata County Commissioner Gwen Lachelt raised questions last week about where it is legal to collect signatures.

A signing station was set up Thursday at the Veterans of Foreign Wars Post 4031, a nonprofit, near 15th Street and Main Avenue.

Almost immediately, a handful of residents singled out the station at the VFW because it is a nonprofit, and they questioned if nonprofits are allowed to accommodate such political activity or if doing so violates their federal tax status.

Richard Stanford, a spokesman with the IRS Media Relations Office in Washington, D.C., said federal disclosure laws and regulations bar IRS personnel from commenting on specific tax matters of specific tax-exempt organizations. He provided links to various IRS policies on tax-exempt organizations on the agency’s website.

Steve White, commander of VFW Post 4031, said on Monday that because several people had raised objections, including questions about the post’s tax-exempt status, he no longer allows signature collection in the VFW’s parking lot.

When he talked to The Durango Herald last week, White was supporting the activity because he said Post 4031 allows almost anyone use of the parking lot, and he did not believe allowing collection of signatures on petitions to recall Lachelt endangered the local post’s tax-exempt status.

He said the VFW is not taking a position on whether to support or oppose the Lachelt recall.

In addition, he said, he personally, would decide whether to support or oppose the recall only after the recall effort had made it to a ballot and an actual vote.

“I’ll sign any petition to put it on the ballot so the people can vote,” he said.

He expressed support for citizen-led issue drives to get a measure on a ballot and for the concept of allowing voters to force a recall of an elected official.

“To eliminate it before it gets to the ballot is a little harsh,” he said. “It’s against who we are. Let the people decide.”

Michael Cugnini, one of the three organizers of the recall effort, declined to comment on Friday. The other two organizers, Ty Hawkins and David Peters, did not return telephone calls.

Lachelt and some of her supporters question whether the signatures collected on a nonprofit’s property should be counted.

Recall supporters object to Lachelt’s environmental lobbying work with Western Leaders Network, a nonprofit she started to serve as a bipartisan platform for local and state officials to connect on conservation issues. They say the lobbying work has affected her attendance at county meetings. Recall supporters also say the work impairs her objectivity on oil and gas issues.

La Plata County Clerk and Recorder Tiffany Parker approved the recall petition against Lachelt earlier this month, and recall supporters have until March 30 to submit 7,505 valid signatures to send the effort to oust Lachelt to the voters.

Parker said it does not matter where signatures are collected, as long as people signing the petition are legal electors in La Plata County.

But the issue of whether nonprofits are allowed to host such petition drives without endangering their tax-exempt status is a gray area.

“Recalls provide a challenging issue,” said Abby Levine, director of advocacy for the Alliance for Justice, a group that provides legal advice to nonprofit groups and works to provide unfettered access to the court system.

“There’s no clear guidance from the Internal Revenue Service on recall activities,” she said.

Levine said courts have found that nonprofits’ involvement in ballot questions on issues and citizen-led drives to put issues before the voters is allowed. In addition, on the federal level, she said nonprofits are allowed to get involved in impeachment campaigns against federal office-holders.

The basic rule guiding the permissible activity, she said, is: Does the effort lead to legislative action, which is allowed, versus an effort to support or oppose an individual candidate, which is not allowed.

Levine said the Alliance for Justice recommends any nonprofit consult its legal counsel before engaging in any specific recall activities.

Lachelt said use of the VFW parking lot for signature collection gave implicit support to the recall effort.

“The optics, with a sign to recall Commissioner Lachelt next to your building, looks like an endorsement to me,” she said.

Lachelt said she would decide after the signature-gathering phase is complete whether she will challenge the validity of signatures collected on property owned by nonprofit organizations.

“Because of the situation, I’ve had to hire attorneys,” she said. “We’ll see what they have to say.”

The location of where a signature is collected is not a valid challenge to a signature’s validity on a petition, Parker said.

“I will not know the location of where the signatures on the petitions are gathered. It is not required that the location of where the signature is obtained be recorded,” she said. “I have no authority over where petitions are circulated, and I can’t control or enforce where signatures are collected.”

Parker said she looks at only three criteria in ruling whether a signature is valid:

Is the signature from a valid elector, someone eligible to vote in the election, in this case a registered voter in La Plata County.

Is the circulator of the petition legally qualified. The circulator must be a Colorado resident, at least 18 years of age, and a citizen of the United States.

Is the circulator certified as legal by a valid notary public registered in the United States.

Earlier last week, signature-gatherers also had to move on from Basin Coop, where they had set up a station for several days.

“There was controversy,” said Lynn Forssberg, president and CEO of Basin Coop, “so we’re not involved anymore. Basin Coop, as a company, can’t take a position. We have members on both sides of the fence.”

Supporters of the recall effort did have permission to use the extreme end of the parking lot for their signature-gathering campaign, Forssberg said, but he added the business and the supporters of the recall have agreed collection of signatures in the parking lot is no longer appropriate given the division of opinion among co-op members about the recall effort.

parmijo@durangoherald.comAn earlier version of this story misstated the name of the Veterans of Foreign Wars Post 4031. The error was made in editing.

Organizers of a recall petition of La Plata County Commissioner Gwen Lachelt collected signatures Thursday in the parking lot of the Veterans of Foreign Wars Post 4031, 1550 Main Ave. Some opponents of the recall effort have asked if granting permission to recall supporters to collect signatures endangers the tax-exempt status of Post 4031. The answer is complicated.